Adidas AG v Fiona Sinclair & Whiteline Clothing Pty Ltd

Adidas AG (Adidas) brought proceedings against Fiona Sinclair and Whiteline Clothing Pty Ltd (the respondents) in the Federal Court of Australia. The dispute concerned allegations of trade mark infringement and passing off, specifically relating to the respondents' use of a three-stripe mark on their apparel. Adidas contended that the respondents' use of this mark was likely to cause confusion among consumers and dilute the distinctiveness of its own well-known three-stripe trade mark.

The primary legal issues before the Court were whether the respondents' use of their three-stripe mark constituted trade mark infringement under the *Trade Marks Act 1995* (Cth), and whether such use amounted to passing off at common law. In relation to trade mark infringement, the Court had to determine if the respondents' mark was substantially identical or deceptively similar to Adidas' registered trade marks, and if the use was in relation to goods or services for which the Adidas marks were registered. The passing off claim required consideration of whether Adidas had established goodwill in its mark, whether the respondents had made a misrepresentation likely to deceive or confuse consumers, and whether Adidas had suffered or was likely to suffer damage as a result.

Justice Brown found that the respondents' three-stripe mark was deceptively similar to Adidas' registered trade marks. Her Honour applied the "imperfect recollection" test, considering the marks as a whole and the likely impression on the ordinary consumer. The Court determined that the visual and conceptual similarities between the marks were sufficient to create a likelihood of confusion. Furthermore, the Court found that Adidas had established significant goodwill in its three-stripe mark, and that the respondents' use of a similar mark on comparable goods constituted a misrepresentation likely to deceive or confuse the public into believing that the goods were associated with Adidas. Consequently, the Court concluded that both trade mark infringement and passing off had been established.

The Court ordered that the respondents be permanently restrained from infringing Adidas' trade marks and from passing off their goods as being connected with Adidas. The respondents were also ordered to pay Adidas' costs of the proceeding.